Legal world gives e-mails the same status as paper

More than a decade into the Internet age, the legal world is finally taking electronic data seriously.

Several changes taking effect December 1 will require attorneys and businesses to regard electronic documents in the same manner with which they've traditionally treated paper documents during the discovery process. That is, electronic communiqués and other data must be readily available when requested for federal trials.

The new rules mark the legal arena's biggest regulatory changes for 2007.

The changes essentially modernize rules that pertained only to paper documents: Businesses must by law now disclose relevant e-mails, for instance.

Companies unprepared to properly release electronic records could suffer big-time litigation losses. They may not be able to prove or disprove a claim, or could even be held in contempt of court.

Attorneys must now scramble to apprise clients on what electronic data to keep. They must also inform clients how to make reasonable requests when seeking data from others.

And businesses will need to consider the extra time they'll need to analyze reams of computerized data, such as e-mails.

"If businesses aren't prepared for it, it could bring a sea change" in the way they approach litigation, said Paul Conable, a Tonkon Torp LLP commercial litigator. "But with challenges come opportunities, and as long as businesses are prepared for the changes, they can make a relatively seamless transition."

The electronic discovery standards come from the U.S. Supreme Court-approved Federal Rules of Civil Procedure, which govern actions brought in federal district courts. State and local courts are expected use the new standards as guidance.

Electronic documents comprise more than half of all information pieces exchanged during the discovery process.

allow computerized information to fall under the same discovery auspices as paper documents, and

bring the same disclosure rules that apply to paper discovery to electronic documents.

There are no specific penalties for violating the rules. Attorneys say in larger cases, any such technical violations could result in millions of lost dollars in larger cases.

"It's clear that clients have to think about these issues before getting involved with a suit," said Stephanie Hines, a Perkins Coie LLP commercial litigator. "There's so much electronic information out there that it's important to have a handle on it. And as litigators, it's important for us to understand our clients' systems."

The dispute between Nike Inc. and the city of Beaverton, in which the shoemaker has protested the city's annexation policies, touched on electronic discovery issues. Nike had objected when, after requesting data from city-owned computers, it received volumes of information that took weeks to process.

The new federal rules recognize that it makes little sense to treat e-mails differently than pieces of paper. To deal with the implications, businesses need to realize that nearly everything created on a computer can be extracted by forensics specialists.

And, if any e-mail, in particular, is destroyed, it likely exists in other places, such as in the other litigants' hands.

On the other hand, the rules also state that companies can't be punished for destroying documents as part of a routine or good-faith information system maintenance.

On the other hand, the rules also state that companies should not be punished for destroying documents as part of a routine or good-faith information system maintenance.

If a company does improperly destroy e-mails in an effort to hide information, "the judge could instruct the jury to assume the e-mails were damaging to the company that destroyed them," said Johnathan Mansfield, an intellectual property attorney with Schwabe, Williamson & Wyatt.

Mansfield advises clients to never destroy any document: It's illegal and unethical, and the document is even likely to contain information that helps, rather than harms, a client.

"Discovery is where most of the cost is, and where most of the gold is, too," said Kieran Curley, an associate at Miller Nash LLP. "People say stuff in an e-mail that they'd never put in a letter. We find great stuff in there for litigation."